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Vacation at your own expense may be the day of dismissal. Calculation upon dismissal after vacation without pay

Going on vacation with subsequent dismissal on own will- this is the right of the employee, enshrined in the Labor Code. To have labor inspectorate there were no complaints, the personnel officer and accountant must follow the procedure in strict accordance with the requirements of the law.

Many people prefer to take the opportunity to take a break before looking for a new job instead of financial compensation for unused vacation days. However, leave with subsequent dismissal has a number of features. Let's look at these features, describe how to provide leave with subsequent dismissal, how to draw up documents correctly. We will answer popular questions on this topic.

About leave with dismissal

He speaks of the possibility of taking a vacation with subsequent dismissal of his own free will. At the written request of the employee, unused vacations may be granted to him with subsequent dismissal.

The first important clause of the legal rule: the provision of rest is excluded if the employee is fired for guilty actions. Take due days before termination employment contract only a conscientious and disciplined worker can. List of guilty actions for which it is impossible to use vacation days in return for compensation, - in article 81 of the Labor Code of the Russian Federation.

The second important caveat: characterizing the employee’s right to leave with subsequent dismissal, Article 127 of the Labor Code of the Russian Federation uses the wording “leaves can be granted”, which means that the employer is not at all obliged to provide the employee with rest before terminating the contract. The head of the organization has the right to refuse even a conscientious employee and pay compensation in return for unused days. Or provide for rest only part of the prescribed period, and compensate for the rest of the time financially. Clarifications on this matter were given by Rostrud in Letter No. 5277 6-1 dated December 24, 2007.

It turns out that an employee can take a chance to rest before looking for a new job only by mutual agreement with the management.

Two ways to go on vacation before leaving

The first option: the employee leaves to rest according to a pre-approved schedule, having written a statement of his own free will before this or already being on vacation. At the same time, he can take time off both pre-planned days according to the schedule, and those days that he did not have time to use before.

The second option: the employee writes an application for rest at the same time as an application for dismissal of his own free will. In this case, the established schedule can not be followed.

The date of termination of the employment contract under Article 127 of the Labor Code of the Russian Federation is considered in any case the last day of rest.

But the management can accept a new employee in the place of a leaving employee immediately, without waiting for the rest to end.

Application and order for leave with subsequent dismissal, registration procedure

The employee usually makes 2 statements:

on leave with subsequent dismissal;
dismissal with reasons.

And the management draws up 2 orders:

on granting leave (based on the first application of the employee);
on termination of the employment contract (based on the second application).

It is also allowed to draw up one application from an employee: you can write an application for a vacation with subsequent dismissal of your own free will - this does not contradict the norms Labor Code of the Russian Federation.

But when using unified form documents, the employer still issues two orders, because the form of a single order has not been officially established. Order forms that can be used are documents of the form T-6 (T-6a) and T-8 (T-8a), recorded in the Decree of the State Statistics Committee of 01/05/2004 No. 1. The original is attached to one of them as a basis, and to the second - a copy of the employee's application. Forms of orders must be approved by the company's management as accounting documents.

The second option for management is not to use unified forms, but to develop an order form on your own. Then you can issue both actions in one order. The main thing is that it contains the required details of the primary accounting document.

Application for leave with subsequent dismissal, sample 2020

The work book is given to the employee on the last day before the rest, despite the fact that he will be fired on the last day of his vacation.

Example: Dudnikova I.N. takes 28 days of rest from 04/17/2018 and quits. She receives the work book and the calculation in her hands on April 16 - the last working day before leaving. She will be officially dismissed on 05/16/2018 - on the last day of rest. Please note that two more non-working days have been added to the main days holidays— 1 and 9 May. Holidays are extended due to holidays. This period is counted in the seniority of I.N. Dudnikova, which is reflected in the order and work book.

Order for leave with subsequent dismissal, sample 2020

A sample of a self-developed order form based on the example application above. An order drawn up in a similar form is issued once.

How leave at your own expense affects the amount of compensation upon dismissal

employees who combine work with education;
spouses of military personnel, if they are granted leave at the same time as their husbands (wives) and the duration of the holidays does not match (clause 11, article 11 of the Law of May 27, 1998 No. 76-FZ);
part-timers in case of exceeding the duration annual leave at the main place of work compared to the duration of the leave provided for combined work (part 2 of article 286 of the Labor Code of the Russian Federation);
employees whose right to leave without pay is provided for by the labor (collective) agreement of the organization (paragraph 7, part 2, article 128 of the Labor Code of the Russian Federation).

Documentation Regardless of whether the vacation is mandatory or not, to provide it, the employee must write an application (Article 128 of the Labor Code of the Russian Federation). Based on the employee's application, issue an order to grant leave (in the form of No. T-6).

Working year and calculation of compensation upon dismissal

Then for the whole of October from 01.10 to 31.10. Then she disappeared, today she called and said that she would quit either 11/16 or 11/17. She said that she would write an application for a b / s from 01.11 and immediately for dismissal. Can you tell me how many days we have to pay compensation? Vacation b / s more than 14 days shifts the billing period.

Do I have to count the days from 14.09 to 16.11 and move the period? leave in advance, dismissal without pay Hide Viktoriya Dymova Support employee Pravoved.ru Similar questions have already been considered, try to look here:

If the employee was on vacation or student leave, they will not give a bonus, is it legal?
Will I receive compensation upon dismissal if there was a transfer to another store of this chain?

Lawyers Answers (1)

All services of lawyers in Moscow Termination of a fixed-term employment contract Moscow from 1000 rubles.

Leave followed by dismissal

Attention

Each employer approves such a schedule no later than 2 weeks before the start of the calendar year. This means that no later than December 17 of the current year, a vacation schedule for next year(Article 123 of the Labor Code of the Russian Federation). If the employee is going on vacation according to the schedule, then it is not necessary to take an application from him for the next vacation.

In this case, it is necessary 2 weeks before the start of the employee's vacation or earlier, send him a notice of vacation against signature (Article 123 of the Labor Code of the Russian Federation). There is no approved form for such notification, so the employer has the right to decide how to notify the employee (Letter of Rostrud dated July 30, 2014 No. 1693-6-1). In addition to the notification, it will be necessary to issue an order to grant leave to the employee or employees in the form No. T-6 or No. T-6a, respectively (approved by

Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1).
Vacation with subsequent dismissal: how to draw it up correctly In the timesheet in the form of No. T-12 or No. T-13 (approved by the Decree of the State Statistics Committee of 01/05/2004 No. 1), the days of leave preceding the dismissal are reflected as ordinary "holiday" days:

if this is the main paid leave, then the letter code "OT" or the numeric code "09" are indicated;
if the employee is on additional paid leave, then in the report card you need to put "OD" or indicate the digital code "10".

If holidays fall on vacation time, then, as we have already noted, they do not reduce the duration of the vacation, and therefore they are reflected in the time sheet as ordinary days off with the letter code “B”, which also corresponds to the digital code “26”.

Calculation upon dismissal after vacation without pay

Important

Based on the new working year, you calculate compensation according to the formula below. If an employee worked in the organization for less than 11 months in a working year, then for this year he is entitled to proportional compensation (clause 35 of the Rules approved by the USSR CNT on April 30, 1930 No. 169). That is, in this case, determine the number of unused vacation days in proportion to the time worked:

If the employee has worked for more than half a month, then this month must be taken as a full month. If an employee has worked less than half a month, then do not take this month into account at all. This rule is established by paragraph 35 of the Rules, approved by the CNT of the USSR on April 30, 1930.

№ 169.

When calculating the compensation associated with the dismissal of an employee, take into account all his main and additional unused vacations for the entire time he worked in the organization (Article 127 of the Labor Code of the Russian Federation). The right of an employee to receive compensation does not depend on the reason for his dismissal. For those who work under civil law contracts, compensation for unused vacation don't count.

This is due to the fact that such employees are not entitled to annual leave (Chapter 19 of the Labor Code of the Russian Federation). For more information, see Who is entitled to paid annual leave. Despite the fact that, as a general rule, the right to receive leave in kind arises no earlier than six months after starting work in a new organization, those employees who have worked for less than six months can also claim compensation for vacation pay upon dismissal (Rostrud letter dated October 31 2008
No. 5921-TZ).
If the employee has worked for more than half a month, then this month must be taken as a full month. If an employee has worked less than half a month, then do not take this month into account at all. This rule is established by paragraph 35 of the Rules, approved by the CNT of the USSR on April 30, 1930.
No. 169. In individual cases full compensation is paid if the employee worked in a working year from five and a half months to 11 months (clause 28 of the Rules approved by the USSR CNT on April 30, 1930 No. 169). In particular, full compensation is paid upon dismissal of an employee in the event of:

liquidation of the organization;
reduction in the number or staff of the organization's employees;
conscription for military service;
recognition of an employee as completely incapable of work according to a medical report.

Labor Code of the Russian Federation the time when the employee did not actually work, but the place of work (position) was retained for him (for example, the time of annual leave or maternity leave, non-working holidays and weekends) the time of parental leave, except when the employee while working on a part-time basis, forced absenteeism during illegal dismissal or suspension from work, if in the future the employee at work is restored the vacation time at his own expense, exceeding in total 14 calendar days per working year the period of suspension from work of the employee who did not pass the mandatory medical checkup through no fault of their own, the time of "administrative" leave at the request of employees.
The period of 14 calendar days is included in the length of service for the provision of annual paid leave; The remaining period of 40 calendar days is excluded from the length of service giving the right to leave. It is for this period that the working year of your employee is shifted by 40 days. 06/23/2013-06/22/2014 (+ 40 days) - 08/01/2014 In this case, in orders for granting leave, you will need to indicate: for the working year from 06/23/2013 to 01/08. 2014. If the duration of leave without pay was 180 days (half a year), then only 14 days of them are accepted as work experience, and the working year is shifted by 166 days. Based on your question, the employee worked for a year and did not use vacation. Accordingly, he is entitled to compensation for 12 months of work, i.e. full duration leave - 28 calendar days.
At the same time, during the working year, the total duration of holidays at one's own expense should not exceed 14 calendar days. hazardous conditions labor. When calculating the length of service in months, surpluses that make up less than half a month are excluded from the calculation, and if more than half a month, they are rounded up to a full month (clause 35 of the Rules on Regular and Additional Leaves, approved by the NCT of the USSR on April 30, 1930 No. 169). For example, an employee was hired on 03/10/2017, the date of dismissal is 06/01/2018.
The number of full months for the period from 03/10/2017 to 05/09/2018 is 14. Surpluses in the amount of 23 days (from 05/10/2018 to 06/01/2018) are rounded up to a full month. In total, the total work experience with the employer is 15 months (14 + 1).

The main difference is that during your absence you will not receive a salary, seniority will also not be accrued. However, at the end of your absence, you can return to your workplace and resume work.

If you plan to be absent for a long time, for example, about a year, then another employee may be hired to replace you and fired after you return to duty.

According to labor law, citizens belonging to the following categories have the right to go on unpaid leave for a certain period:

Veterans of the Second World War - up to thirty-five days a year;
Retirees making labor activity- up to fourteen days a year;
Relatives and spouses of the military who are serving or died - up to fourteen days a year;
People with problems of the musculoskeletal system or other types of disabilities who work - up to sixty days a year;
All employees, regardless of social group, in the event of marriage or close relatives, the death of a parent or on the occasion of the birth of a child in the family - up to five days a year.

To receive this type of leave, you must write an application addressed to your management, detailing the reasons why you need this type of leave.

How to go on vacation with subsequent dismissal

Job termination may take place different forms. An employee can write a letter of resignation or go on vacation and quit only after that. Let's consider this case in more detail. According to labor law, if the employee did not have time to go on vacation before dismissal, the employer is obliged to pay him compensation for the vacation that the employee did not spend.

The whole procedure is performed by mutual agreement on both sides.

If the employee decides to go on vacation with subsequent dismissal, then his last working day will be the day before the vacation. Until this moment, it is necessary to resolve all work issues and prepare a letter of resignation. Speaking about payment, let us clarify that the payment of vacation funds must be made three days before the start of the vacation, and the final payment on the very last day of the employee's vacation.

How to go on maternity leave and how it differs from the usual

The labor legislation notes that this type of leave is approximately 70 days before childbirth and 70 after them, however, it can be extended due to the difficult course of pregnancy.

Employees often confuse maternity leave with parental leave. Let's dispel this error. It's absolutely different types holidays. The last one can last three years.

Speaking of benefits for this vacation, they will stick to the average income level, as if you were on sick leave. However, the minimum payout must be at least 2,326 rubles. You can apply for maternity leave from the start of the 30th week of your pregnancy. If you are expecting not one child, but two at once, then this period is reduced to 28 weeks. The procedure is quite simple and should not cause unnecessary questions from the management.

How to take parental leave

A young mother has the right to take parental leave, which will last up to three years, this is guaranteed by the Labor Code. At this time, while the woman will be caring for and raising a newborn, her workplace will be saved for her and she will be able to return to it after the vacation period expires.

This leave is included in the length of service with a mark on caring for a child. Until the child is one and a half years old, the mother will receive a special social insurance allowance every month. Note that these payments for working and non-working women are noticeably different.

Leave may be denied if the woman did not work before giving birth and going on maternity leave. In addition, a refusal may follow if there are relatives who can look after the child while the young mother is working.

Vacation at own expense, without pay

Leave at your own expense family circumstances and other good reasons. The employer decides to release the employee on time off or, on the contrary, refuse him. In rare cases, the grant of leave is prerequisite for the company, if there are good reasons for it. For example, for some categories of citizens, the head does not have the right to refuse time off at his own request.

Sick leave during vacation - paid or not

A sick leave during a vacation can be received by both the employee himself, and if a child or other family member who needs care is ill, he will be given a certificate of incapacity for work

To avoid trouble, you need to understand all the intricacies of the current situation.

How to write an application for leave before the decree

An application for a vacation before the decree - you need to correctly draw up every expectant mother. Pregnancy is one of the main moments in the life of every woman and the safety of the child depends only on the expectant mother. Many women try to avoid stress, both physical and psychological, at this time, so many of them think about the real necessary vacation before the decree.

How maternity pay is calculated for a second child

How maternity for a second child is calculated should be known to any modern woman. Maternity leave is divided into 2 periods: prenatal and postnatal. Regardless of which day the birth took place, payments are accrued in full for the entire vacation time, simultaneously and no later than ten days.

Indefinite leave without pay

Indefinite leave without pay is unspoken. The usual one is regulated by article 128 of the Labor Code of the Russian Federation. Due to difficult family or other circumstances requiring presence, or due to other urgent reasons, an employee may apply for a holiday at his own expense.

What week do they go on maternity leave?

Not every woman knows which week they go on maternity leave. The reality of our world is such that representatives of the beautiful half of humanity work on an equal footing with men, even during pregnancy.
Any woman has the right to go on maternity leave at her main place of work at a certain time, prescribed in the regulations.

1. Vacation at own expense for family reasons and other valid reasons .

In order for unpaid leave to take place, a written application from the employee and the consent of the employer are required.

The duration of the leave is determined by agreement between the employee and the employer ( Art. 128 Labor Code of the Russian Federation).

2. Leave without pay for the privileged category of employees.

The employer must provide such leave in accordance with the provisions of Part 2 of Article 128, Articles 173 and 174 of the Labor Code of the Russian Federation, Law of the Russian Federation dated January 15, 1993 No. 4301-1 “On the Status of Heroes Russian Federation and full cavaliers of the Order of Glory" and federal laws:

-dated 12.01.95 No. 5-FZ"About Veterans"(hereinafter referred to as the Veterans Law);

-dated 09.01.97 No. 5-FZ"On granting social guarantees Heroes of Socialist Labor and full holders of the Order of Labor Glory";

-dated 27.05.98 No. 76-FZ"On the status of a serviceman";

-dated 06.05.2011 No. 100-FZ"About voluntary fire protection";

-dated 02.03.2007 No. 25-FZ"O municipal service in the RF";

-dated July 27, 2004 No. 79-FZ"On the state civil service RF";

-dated 10.01.2003 No. 19-FZ"On the Election of the President of the Russian Federation";

-dated May 18, 2005 No. 51-FZ“On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation”;

-dated 12.06.2002 No. 67-FZ"On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation".

For this type of leave, the consent of the employer is not necessary, only a written application from the employee is necessary.

3. Vacation at own expense with subsequent dismissal.

The Labor Code of the Russian Federation does not provide for leave at its own expense with subsequent dismissal. There is such a norm only for unused paid holidays - basic and additional ( Part 2 Art. 127 Labor Code of the Russian Federation).
In practice, employers often apply this rule to unpaid leave with subsequent dismissal ( rulings of the Moscow City Court of February 15, 2013 No. 4g / 7-788 / 13 and of December 6, 2011 in case No. 33-40058).
According to Rostrud, the employer has the right to grant the employee leave with subsequent dismissal ( letter dated December 24, 2007 No. 5277-6-1).
An alternative would be to fire an employee at will. Only in this case, he must notify the employer in writing no later than 2 weeks ( Part 1 Art. 80 of the Labor Code of the Russian Federation).
If the employer does not object to the dismissal of the employee, then the employment contract may be terminated before the expiration of the specified period ( Part 2 Art. 80 of the Labor Code of the Russian Federation).
On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with article 140 of the Labor Code of the Russian Federation (part 4 of article 84.1 of the Labor Code of the Russian Federation).
Since the employee does not work on the day of dismissal, the employer is obliged to send him a notice of the need to appear for work book or ask for consent to send it by mail ( Part 6 Art. 84.1 of the Labor Code of the Russian Federation).

The employer is obliged to make settlements with the employee no later than the next day after the employee's demand for settlement ( Part 1 Art. 140 of the Labor Code of the Russian Federation).

4. Additional leave at own expense for employees who care for children .

This is an additional guarantee for employees who have children. The list of persons who may be granted such leave is listed in article 263 of the Labor Code of the Russian Federation. The condition for granting such leave must be prescribed in the collective agreement.
Additional leave is provided at the written request of the employee at a convenient time for him. It can be attached to the annual paid one or used separately. And you can walk it off completely or divide it into parts. The main thing is to use the days of additional rest during the year, since the Labor Code of the Russian Federation does not allow transferring balances to the next working year.

Leave is granted to both parents - employees of the same organization, regardless of whether the other parent used it or not ( Art. 263 of the Labor Code of the Russian Federation). The right to additional leave without pay is granted to employees-parents from the year of birth of the child to the year the child is 14 or 18 years old inclusive ( Art. 263 of the Labor Code of the Russian Federation).

5. Is it possible to provide forced leave without pay?

The Labor Code of the Russian Federation does not provide for forced leave at its own expense at the initiative of the employer. If the employee cannot perform labor duties, and this is not his fault, then the employer is obliged to pay him this time as simple ( Decree of the Ministry of Labor of Russia dated June 27, 1996 No. 40"On the approval of the clarification "On leave without pay at the initiative of the employer"").
Downtime is paid in the amount of at least 2/3 of the average salary of an employee ( Part 1 Art. 157 Labor Code of the Russian Federation).
If you sent an employee on forced leave on your own initiative, then this is considered a violation. There is a penalty for this:

An official may be fined from 1,000 to 5,000 rubles;

Organization - from 30,000 to 50,000 rubles. ( Part 1 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation).

Penalties for repeated violations will be higher:

Up to 20,000 rubles. or disqualification for a period of 1 to 3 years for an official;

Up to 70,000 rubles. For the company ( Part 2 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation).

6. Is it possible to grant leave at one's own expense for two reasons at the same time?

It is forbidden. Days of such rest are not cumulative. Therefore, the employee can only count on vacation the longest of the possible.

For instance, an employee has the right to take 14 calendar days off at his own expense as a working pensioner and 35 calendar days as a combat veteran (part 2 of article 128 of the Labor Code of the Russian Federation). In this case, the organization will give the employee 35 days.

Persons who care for children Art. 263 of the Labor Code of the Russian Federation), the specified leave, upon a written application of the employee, may be attached to the annual paid leave or used separately in whole or in parts. The transfer of this leave to the next working year is not allowed.

7. Can I refuse to grant leave at my own expense?

The denial of leave depends on the reasons why the employee asked for it.

If an employee belongs to a privileged category of employees who, in accordance with the provisions of Art. 128, 173, 174 of the Labor Code of the Russian Federation and federal laws, the employer is obliged to provide leave without pay, the employer has no right to refuse him such leave.
The company has the right to refuse to provide an employee with leave at its own expense in only one case - the employee asks for rest days for family reasons and other valid reasons.
The employer may refuse due to the fact that the vacation may adversely affect the activities of the organization.

If, after receiving a refusal, the employee nevertheless goes on vacation, then this can be regarded as absenteeism. And this may be the basis for terminating the employment contract for the basis of paragraphs. “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation (Appeal ruling of the Moscow City Court dated January 30, 2013 in case No. 11-2971).

8. Is it possible to quit on vacation at your own expense?

Only in some cases, dismissal during the vacation period at your own expense is possible:

If the employee wrote a letter of resignation on his own initiative ( Art. 80 of the Labor Code of the Russian Federation);

If there is an agreement between the employee and the employer ( Art. 78 Labor Code of the Russian Federation);

If the organization is liquidated or the individual entrepreneur ceases to operate ( Art. 81 of the Labor Code of the Russian Federation).

In other cases, the employer is not entitled, on its own initiative, to dismiss an employee who is on vacation, including on leave without pay.

9. Can an employee take early leave at their own expense?

The Labor Code of the Russian Federation does not regulate the procedure for early exit of an employee from vacation without pay.
If an employee is the initiator of early exit from vacation at his own expense, he must write an application addressed to the head of the organization. In case of consent, the employer issues an appropriate order.

For instance, the wording of the order may be as follows: “Consider August 10, 2017 as the day the end of the leave without pay. E.E. Skauzov to start work on August 11, 2017. Reason: statement by E.E. Skauzov on August 8, 2017.

Familiarize yourself with the order of the employee under the signature. If the employer does not agree, he puts his resolution of disagreement on the application.
If the employer is the initiator, he must notify the employee of the recall from vacation at his own expense. On the notification, the employee will put his mark on whether he agrees to go to work early or not.
Upon receipt of consent, the employer issues an order to recall the employee from vacation without pay.

For instance, the wording of the order may be as follows: “In connection with the production need to recall researcher E.E. Skauzov since August 10, 2017”. Familiarize yourself with the order of the employee under the signature.

In both cases, in section VIII of the employee's personal card, clarifications are made on the actual duration of the vacation.

10. Is unpaid leave extended on non-working holidays?

Non-working holidays do not include, when calculating calendar days, the annual basic or annual additional paid leave in accordance with Part 1 Art. 120 Labor Code of the Russian Federation.
But this rule does not apply to vacations that employees take without pay.

Therefore, if non-working holidays fall on unpaid leave, then they are included in the number of calendar days of such leave. That is, when calculating the days of rest in this case, it is not necessary to extend their number for non-working holidays.

11. Can I provide a vacation at my own expense for a few hours?

V Part 1 Art. 128 Labor Code of the Russian Federation it is stated that the duration of such leave is determined by agreement between the employee and the employer.
At the same time, all types of vacations in accordance with the Labor Code of the Russian Federation are provided in calendar or working days, in particular:

Annual basic paid leave - 28 calendar days ( Part 1 Art. 115 Labor Code of the Russian Federation);

Annual additional paid leave for employees with irregular working hours - at least 3 calendar days ( Part 1 Art. 119 Labor Code of the Russian Federation);

Paid leave for employees who work in seasonal jobs - 2 working days for each month of work ( Article 295 of the Labor Code of the Russian Federation).

Due to the fact that the Labor Code of the Russian Federation provides for holidays in days, it is also more expedient for companies to provide employees with holidays at their own expense in days, not hours.
In the Internal Labor Regulations, the employer can fix the following provision:

For instance, “For family reasons and other valid reasons, the Employee may be granted unpaid leave for the number of working days agreed with the Employer, if this does not lead to violation of the deadlines and disruption of current work to which the Employee is directly related. The employee must notify the manager in a timely manner of granting such leave. structural unit with observance of the order of service subordination. Leave without pay is granted on the basis of a written application of the Employee and is issued by order (instruction) CEO. By agreement with the head of the structural unit, unworked work time The employee can make up during the accounting period.”

That is, one day the employer will put down the employee in the report card, for example, 6 working hours, and on the other day, when he makes up for these unworked hours, 10 hours. All changes in the working time schedule must be agreed in writing to avoid conflicts. In the application for leave without pay, the employee can indicate the day when he is ready to stay at work.

12. How to reflect the period "vacation at your own expense" in the report card?

In the time sheet, the vacation period is indicated depending on the type of such vacation. So, to designate a period of unpaid leave, put:

Letters BEFORE or number 16 if the employee asked for leave for family reasons and other valid reasons;

Letters OZ or number 17 if the leave is the responsibility of the employer;

Letters DB or number 18 if the leave was granted under a collective agreement

The length of service that is calculated for the provision of annual paid holidays depends on the duration of unpaid leave.

13. How does a vacation at your own expense affect the vacation experience?

Vacations at their own expense, which are provided at the request of the employee, are included in the length of service, which entitles them to the annual basic paid leave. But only in the part that does not exceed 14 calendar days during the working year ( Art. 121 Labor Code of the Russian Federation).
If an employee rested more than 14 calendar days at his own expense, his working year is shifted by the number of days of excess.
Days of unpaid leave are excluded from the calculation period when calculating average earnings. This exception does not depend on the duration of the rest ( sub. "e" p. 5 of the Regulation on average earnings, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922).

The period of stay on such a vacation does not participate in the insurance period, which is considered when assigning a pension ( Part 1 Art. 10 federal law dated December 17, 2001 No. 173-FZ).

Do you have any questions? Ask for free consultation to our experts!

The Labor Code does not regulate many issues related to the provision of unpaid leave. Can an employee take such leave with subsequent dismissal? Can an employer withdraw an employee from vacation at his own expense? Are vacations cumulative if the employee is entitled to them for several reasons? The answers to these and other questions are in the article.

Before considering the 10 most interesting situations related to the provision of unpaid leave to employees, let's talk about the types of such leaves and the features of their provision.

Three types of vacations at your own expense

Unpaid leave is granted on the basis of written applications from employees. Holidays can be roughly divided into three types. These are vacations, the provision of which:

- right of the employer;

- his duty;

- the obligation of the employer, if it is established in a collective agreement or industry agreement.

What types of vacations are included in each of the above types?

Vacation at own expense for family reasons and other valid reasons

The employer may (but is not obliged) to provide such leave to the employee on the basis of his written application. The duration of the leave is determined by agreement between the employee and the employer (Article 128 of the Labor Code of the Russian Federation). That is, in order for the leave without pay to take place, a written application from the employee and the consent of the employer are required.

Leave without pay for the privileged category of employees

The employer is obliged to provide such leave in accordance with the provisions of Part 2 of Article 128, Articles 173 and 174 of the Labor Code of the Russian Federation, Law of the Russian Federation of January 15, 1993 N 4301-I “On the Status of Heroes of the Russian Federation and Full Cavaliers of the Order of Glory” and federal laws:

- dated 09.01.97 N 5-FZ "On the provision of social guarantees to the Heroes of Socialist Labor and full holders of the Order of Labor Glory";

- dated 27.05.98 N 76-FZ "On the status of a serviceman";

- dated 06.05.2011 N 100-FZ "On voluntary fire protection";

- dated 02.03.2007 N 25-FZ "On municipal service in the Russian Federation";

- dated July 27, 2004 N 79-FZ "On the state civil service of the Russian Federation";

- dated 10.01.2003 N 19-FZ "On the election of the President of the Russian Federation";

- dated 18.05.2005 N 51-FZ "On the election of deputies of the State Duma of the Federal Assembly of the Russian Federation";

- dated 12.06.2002 N 67-FZ "On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation."

To provide this type of leave, the consent of the employer is not necessary, only a written application from the employee is necessary.

Additional leave at own expense for carers

The provision of such holidays is an additional guarantee for employees with children. The categories of persons who may be granted such leave are listed in Article 263 of the Labor Code of the Russian Federation. The condition for the provision of these holidays must be provided for in the collective agreement or industry agreement.

Additional leave is granted upon a written application of the employee at a convenient time for him. This leave can be added to the annual paid leave or used separately in whole or in parts. The Labor Code does not allow to transfer it to the next working year.

The right to additional leave without pay is granted to employees-parents from the year the child is born to the year the child turns 14 or 18 years old inclusive (Article 263 of the Labor Code of the Russian Federation).

Note.Leave is granted to both parents - employees of the same organization, regardless of whether it is used by the second parent or not (Article 263 of the Labor Code of the Russian Federation).

cheat sheet

To which employees the employer is obliged to provide leave at their own expense upon their written application

Vacation duration	Employee category	Base
1	2	3
Leave granted at the written request of the employee in accordance withArticle 128Labor Code of the Russian Federation
Up to 5 calendar days	Employees, including those performing alternative service*, in cases of the birth of a child, marriage registration or death of close relatives	Paragraph 6 of Part 2 of Article 128 of the Labor Code of the Russian Federation
Up to 14 calendar days	Working old-age pensioners (by age)	Paragraph 3 of Part 2 of Article 128 of the Labor Code of the Russian Federation
Parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of a disease associated with military service	Paragraph 4 of Part 2 of Article 128 of the Labor Code of the Russian Federation
Up to 60 calendar days	Working disabled people	Paragraph 5 of Part 2 of Article 128 of the Labor Code of the Russian Federation
Estimated number of calendar days	Part-time workers, if the duration of annual leave at the main place of work is longer than part-time	Part 2 of Article 286 of the Labor Code of the Russian Federation
Spouses of military personnel, if the duration of their annual leave is less than the duration of the spouse's leave	Clause 11 of Article 11 of Federal Law No. 76-FZ of May 27, 1998
No more than 6 months in total with paid annual leave	Employees working in the regions of the Far North and areas equivalent to them, for travel to the place of use of the vacation and back	Part 3 of Article 322 of the Labor Code of the Russian Federation
Leave granted when combining work with study in educational institutions higher vocational education
Up to 15 calendar days	Employees who are admitted to entrance examinations to educational institutions of higher professional education	Paragraph 2 of Part 2 of Article 173 of the Labor Code of the Russian Federation
Students of the preparatory departments of educational institutions of higher professional education for the final exams	Paragraph 3 of Part 2 of Article 173 of the Labor Code of the Russian Federation
Employees for passing intermediate certification	Paragraph 4 of Part 2 of Article 173 of the Labor Code of the Russian Federation
Up to 1 month	Employees to pass the final state exams
Up to 4 months
Leave granted when combining work with studies in educational institutions of secondary vocational education
Up to 10 calendar days	Employees admitted to entrance examinations to educational institutions of secondary vocational education	Paragraph 2 of Part 2 of Article 174 of the Labor Code of the Russian Federation
Employees studying in educational institutions of secondary vocational education in full-time education for passing intermediate certification	Paragraph 3 of Part 2 of Article 174 of the Labor Code of the Russian Federation
Up to 1 month	Employees for final exams
Up to 2 months	Workers to prepare and defend graduation qualifying work and passing the final state exams
Additional leave without pay, if any collective agreement
Up to 14 calendar days	Employees with two or more children under the age of 14	Part 1 of Article 263 of the Labor Code of the Russian Federation
Employees with a disabled child under the age of 18
The worker is a single mother raising a child under the age of 14
Father-employee raising a child under the age of 14 without a mother
Vacation granted under federal law
Up to 10 calendar days	Volunteer firefighters of territorial divisions of voluntary fire protection	Clause 7 of Article 18 of Federal Law No. 100-FZ of May 6, 2011
Up to 35 calendar days	Persons awarded the badge "Inhabitant of besieged Leningrad"	Article 18 Clause 1 Subsection 9 of the Veterans Act
Combat veterans	Subsection 11 of Section 1 of Article 16 of the Veterans Act
Up to 3 weeks	Heroes of Socialist Labor and full holders of the Order of Labor Glory	Part 2 of Article 6 of the Federal Law of 09.01.97 N 5-FZ
Heroes of the USSR, Heroes of the Russian Federation and full cavaliers of the Order of Glory	Part 3 of Article 8 of the Law of the Russian Federation of 15.01.93 N 4301-I
Up to 60 calendar days	War invalids	Subsection 17 of Section 1 of Section 14 of the Veterans Act
Long holidays
Up to 1 year	municipal employees	Part 6 of Article 21 of the Federal Law of March 2, 2007 N 25-FZ
civil servants	Clause 15 of Article 46 of the Federal Law of July 27, 2004 N 79-FZ
Holidays for the period of election campaigns
From the date of registration of a candidate by the CEC of the Russian Federation (list of candidates) until the day of the official publication of the results of the election of the President of the Russian Federation (deputies of the State Duma)	Members of the election commission with the right of an advisory vote	Clause 3 of Article 16 of Federal Law No. 19-FZ of January 10, 2003 and Clause 4 of Article 22 of Federal Law No. 51-FZ of May 18, 2005
For the term of office	Proxies of candidates, electoral associations	Clause 3 of Article 43 of Federal Law No. 67-FZ of June 12, 2002"

Ten questions about vacation at your own expense

Now consider the 10 most interesting situations related to the provision of unpaid leave to employees.

Question N 1. Is it possible to provide forced leave?

Can an employer, on its own initiative, send an employee on leave without pay?

Labor legislation does not provide for forced leave at one's own expense at the initiative of the employer.

If the employee, through no fault of his own, cannot perform the duties stipulated by the employment contract, the employer is obliged to pay him this time as downtime .

Note.The replacement of downtime through no fault of the employee with forced leave at the request of the employer should be considered illegal.

According to part 1 of article 157 of the Labor Code of the Russian Federation, downtime is paid in the amount of at least 2/3 of the average salary of an employee.

An employer who, on his own initiative, sent an employee on leave without pay, violates labor and labor protection legislation and may be held administratively liable. For this violation, an official may be fined from 1,000 to 5,000 rubles, and an organization from 30,000 to 50,000 rubles. (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Instead of a fine, an administrative penalty may be imposed on the organization in the form of suspension of activities for up to 90 days.

Note.Repeated violation official labor legislation entails his disqualification for a period of one to three years (part 2 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Question No. 2. Is it possible to provide leave at your own expense on two grounds?

How many days of leave without pay can an employee take if he is entitled to such leave at once for two reasons, for example, as:

— working pensioner (14 calendar days);

— combat veteran (35 calendar days)?

Leave without pay is not cumulative. The employee can only count on the longest vacation possible. In our case, up to 35 calendar days (as a combat veteran) (part 2 of article 128 of the Labor Code of the Russian Federation) (see table on p. 108).

By analogy with additional holidays without saving wages to persons caring for children (Article 263 of the Labor Code of the Russian Federation), the specified leave, upon the written application of the employee, can be attached to the annual paid leave or used separately in whole or in parts. The transfer of this leave to the next working year is not allowed.

Question N 3. Can I refuse to grant leave at my own expense?

Can an employer refuse to grant an unpaid leave to an employee?

If an employee belongs to a privileged category of employees who, in accordance with the provisions of articles 128, 173, 174 of the Labor Code of the Russian Federation and federal laws, the employer is obliged to provide leave without pay, the employer has no right to refuse him such leave.

But he has the right to refuse to provide the employee with leave at his own expense for family reasons and other valid reasons, if this may adversely affect the activities of the organization.

Moreover, the employer may regard the unauthorized departure of an employee on leave without pay as absenteeism. In this connection, the employment contract can be terminated on the basis of subparagraph "a" of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation (Appeal ruling of the Moscow City Court dated January 30, 2013 in case No. 11-2971).

Question No. 4. Is dismissal allowed during the vacation period at your own expense?

Can an employer fire an employee during unpaid leave?

Such dismissal is possible only in certain cases:

- if the initiative comes from the employee himself (Article 80 of the Labor Code of the Russian Federation);

- an agreement has been reached between the employee and the employer (Article 78 of the Labor Code of the Russian Federation);

- the organization is being liquidated individual entrepreneur terminates its activities) (part 6 of article 81 of the Labor Code of the Russian Federation).

Note.In other cases, the employer is not entitled, on its own initiative, to dismiss an employee who is on vacation, including on leave without pay.

Question N 5. Is it allowed to leave the vacation at your own expense ahead of schedule?

Can an employee take early leave at their own expense?

The Labor Code does not regulate the procedure for early exit of an employee from vacation without pay.

The initiator is an employee. If an employee is the initiator of early exit from vacation at his own expense, he must write an application addressed to the head of the organization.

Note.The issue of early retirement is decided by agreement between the employer and the employee.

In case of consent, the employer must issue an appropriate order. The wording of the order may be as follows: “Consider June 17, 2013 as the day the end of vacation without pay. E. E. Skauzov to start work on June 18, 2013. Reason: E. E. Skauzov’s statement dated June 11, 2013.” The employee must be familiarized with the order against signature.

If the employer does not agree, he puts his resolution on disagreement on the employee's statement.

The initiator is the employer. If the employer is the initiator, he must notify the employee of the recall from vacation at his own expense. On the notice, the employee will express his agreement or disagreement.

Upon receipt of the consent of the employee, the employer issues an order to recall the employee from vacation without pay. The wording of the order may be as follows: “In connection with the production need to recall researcher E.E. Skauzov from June 18, 2013 from vacation without pay.” The employee must be familiarized with the order against signature.

In both cases, in section VIII of the employee's personal card, clarifications are made on the actual duration of the vacation.

Question N 6. Is the vacation extended for non-working holidays?

Is it necessary to extend unpaid leave for the period of non-working holidays?

According to part 1 of article 120 of the Labor Code of the Russian Federation, non-working holidays are not included in the number of calendar days of the annual main or annual additional paid leave.

But the effect of Article 120 of the Labor Code of the Russian Federation does not apply to holidays without pay. Therefore, if non-working holidays fall on unpaid leave, then they are included in the number of calendar days of such leave, without extending it.

Example 1. An employee wrote an application for leave without pay from June 1 to June 19, 2013 (19 calendar days). This period includes a holiday non-working day on June 12. On what day the employee should go to work - June 20 or 21?

Solution. A non-working holiday on June 12, which fell on the period of leave without pay, is included in the period of such leave, without extending it. The employee must return to work on June 20.

Question No. 7. Is a leave granted at one's own expense for several hours?

Labor law does not establish a minimum or maximum duration of unpaid leave. Part 1 of Article 128 of the Labor Code of the Russian Federation states that the duration of such leave is determined by agreement between the employee and the employer. At the same time, all types of holidays according to Labor Code are provided in calendar or working days, in particular:

- annual basic paid leave - 28 calendar days (part 1 of article 115 of the Labor Code of the Russian Federation);

- annual additional paid leave for employees with irregular working hours - at least three calendar days (part 1 of article 119 of the Labor Code of the Russian Federation);

- Paid leave for employees engaged in seasonal work - two working days for each month of work (Article 295 of the Labor Code of the Russian Federation).

It is more expedient to provide the employee with leave at his own expense in days, and not in hours.

In the Internal Labor Regulations, the employer may fix the following provision: “For family reasons and other valid reasons, the Employee may be granted leave without pay for the number of working days agreed with the Employer, if this does not lead to violation of the deadlines and disruption of current work, to which The employee is directly related. The Employee must promptly notify the head of the structural unit of the provision of such leave in compliance with the order of subordination. Leave without pay is granted on the basis of a written application of the Employee and is issued by order (instruction) of the General Director. By agreement with the head of the structural unit, the employee can make up for unworked working time during the accounting period.

That is, one day the employer will put down the employee in the report card, for example, 6 working hours, and on the other day, when he makes up for these unworked hours, 10 hours.

All changes in the working time schedule must be agreed in writing to avoid conflicts.

In the application for leave without pay, the employee can indicate the day when he is ready to stay at work.

Question N 8. How to reflect the period of "vacation at your own expense" in the report card?

How to reflect the period of vacation without pay in the time sheet?

In the time sheet, the vacation period is indicated depending on the type of such vacation. So, the period of leave without pay:

- provided to the employee for family reasons and other valid reasons with the consent of the employer, is indicated in the report card with the letter code DO or digital 16;

- the provision of which is the responsibility of the employer, is marked in the report card with the letter code OZ or digital 17;

- provided in accordance with a collective agreement or industry agreement, in the report card is marked with the letter code DB or digital 18.

The duration of unpaid leave is important not only for recording the attendance at work in the report card. The length of service calculated for the purpose of granting annual paid holidays depends on it.

Question N 9. How does a vacation at one's own expense affect the vacation period?

How does the duration of unpaid leave affect the length of service for annual paid leave?

Vacations at their own expense, provided at the request of the employee, are included in the length of service, giving the right to the annual basic paid leave, but only in part not exceeding 14 calendar days during the working year (paragraph 6, part 1, article 121 of the Labor Code of the Russian Federation) .

If an employee used a vacation at his own expense lasting more than 14 calendar days, his working year is shifted by the number of days in excess.

Example 2. E. E. Skauzov has been working at Liverpool OJSC as a researcher since March 12, 2012. Every year, as a combat veteran, he takes an unpaid leave of 35 calendar days. In 2012, he took the specified vacation from October 1 to November 4. How will this affect the calculation of the length of service that gives the right to annual paid leave?

Solution. In the first working year of an employee (from March 12, 2012 to March 11, 2013), out of 35 calendar days of unpaid leave, only 14 calendar days will be included in the work experience for vacation (paragraph 5, part 1, article 121 of the Labor Code of the Russian Federation).

The start of the employee's second working year will be shifted by 21 calendar days (35 calendar days - 14 calendar days). Therefore, his second working year will be from April 2, 2013 to April 1, 2014.

Note that the days of unpaid leave are excluded from the billing period when calculating the average earnings, regardless of its duration (subparagraph “e”, paragraph 5 of the Regulation on average earnings, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922).

In addition, the period of stay on such a vacation is not included in the length of service taken into account when assigning a pension (part 1 of article 10 of the Federal Law of December 17, 2001 N 173-FZ).

Question No. 10. Can an employee take a vacation at his own expense with subsequent dismissal?

The Labor Code does not provide for the provision of unpaid leave with subsequent dismissal. There is such a norm only for unused paid holidays - basic and additional (part 2 of article 127 of the Labor Code of the Russian Federation).

In practice, employers often apply this rule to holidays at their own expense by analogy (determinations of the Moscow City Court of February 15, 2013 N 4g / 7-788 / 13 and of December 6, 2011 in case N 33-40058).

According to Rostrud, the employer can grant the employee leave with subsequent dismissal, but this is his right, not his obligation (letter dated December 24, 2007 N 5277-6-1).

Note. Leave followed by dismissal

When granting leave with subsequent dismissal, the day of dismissal is considered the last day of vacation (part 3 of article 127 of the Labor Code of the Russian Federation). It is the last day of vacation that the record of dismissal in the work book of the employee should be dated. Moreover, the last day of work will be the last day the employee goes to work. That is, in fact labor Relations with the employee are terminated with the start of his vacation (Determination of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-O-O and letter of Rostrud of December 24, 2007 N 5277-6-1).

As you can see, in this case, the concepts of “day of dismissal” and “last day of work” do not coincide. This means that it is necessary to give the work book and make a full settlement with the employee before he goes on vacation - on the last day of work (part 5 of article 80, articles 84.1 and 127 of the Russian Federation).

When granting leave with subsequent dismissal, the employee has the right to withdraw his application for dismissal before the start of the vacation, if another employee is not invited to his place in the transfer procedure (part 4 of article 127 of the Labor Code of the Russian Federation).

An alternative to dismissal at the end of unpaid leave may be the dismissal of an employee of his own free will. Only in this case, he must notify the employer about this in writing no later than two weeks in advance (part 1 of article 80 of the Labor Code of the Russian Federation).

The employment contract may also be terminated before the expiration of the specified period, if the employer does not object to the dismissal of the employee (part 2 of article 80 of the Labor Code of the Russian Federation).

Note.The specified period begins the next day after the employer receives the employee's application for dismissal (part 1 of article 80 of the Labor Code of the Russian Federation).

On the day the employment contract is terminated, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Article 140 of the Labor Code of the Russian Federation (part 4 of Article 84.1 of the Labor Code of the Russian Federation). Since the employee does not work on the day of dismissal, the employer is obliged to send him a notification about the need to appear for a work book or agree to send it by mail (part 6 of article 84.1 of the Labor Code of the Russian Federation).

The employer is obliged to make settlements with the employee no later than the next day after the employee's demand for settlement is presented (part 1 of article 140 of the Labor Code of the Russian Federation).